Sexual Offences Act still to be fully implemented

Three years after the Sexual Offences Act (2010) came into effect and over a year after amendments were made to the act, the National Task Force for the prevention of sexual offences and the sexual offences unit mandated under the law, are yet to become a reality. This denies victims of sexual crimes the all-encompassing assistance envisioned by what some have described as “revolutionary” legislation.

Many in civil society who work with victims of sexual crimes and campaign on their behalf, have found this situation disappointing and have been calling on the government and moreso the Ministry of Human Services & Social Security to ensure that these two crucial aspects of the law are not only paraded as examples of advanced legislation, but actually become reality and benefit the victims.

“The lack of implementation of the Sexual Offences Act has been very, very disappointing to many of us who worked really hard on all aspects of getting that act…” women rights activist Danuta Radzik told this newspaper in a recent interview.

Under the act the President shall appoint members of the Task Force which shall include the Ministers of Legal Affairs, Home Affairs, Human Services and Social Security, Amerindian Affairs, Education, Health, Local Government, Youth, Sport and Culture, senior public officers with responsibility for law enforcement, health and human and social services and persons from non-governmental organizations.

The Sunday Stabroek has been unable to reach current Minister of Human Services & Social Security Jennifer Webster on the issue but last year in a letter informing the nation that President Donald Ramotar had assented to the amended version of the act the minister indicated that the task force had been set up.

“Since the Sexual Offences Task Force was convened, three meetings were held,” the minister said in the letter, but since then there has been no clear indication about the way forward on this issue.

Many who have worked in the area have stated that nothing has been done and that the task force is still to commence functioning.

But Priya Manickchand, former minister of that ministry and now Minister of Education, told the public via her Facebook page that Westford had assured her that “work will intensify in this regard.” Manickchand, who recently has come under public criticism over a comment she made in the National Assembly about the ongoing rape charges against CN Sharma following which she refused to apologise to his son Jaipaul Sharma, then an MP, was instrumental in making the act a reality during her tenure as minister. Manickchand had justified her refusal to apologise by saying that it would have betrayed the victims of rape and paedophilia.

However, women representing Red Thread and Help & Shelter, in a letter to the media had noted that the victims of rape and paedophilia needed to have the Sexual Offences Task Force convened and resourced without delay, so that the national plan of action for the prevention of sexual offences could become a reality, and more importantly, be enforced without fear or favour regardless of status and income, sex, sexual orientation, ethnicity, geography, age or disability.

They had written that rather than use Sharma as a vehicle for her commitment not to betray victims the minister should instead use her offices and considerable influence and knowledge of the sexual offences laws within her party and government to ensure that the Sexual Offences Act was enforced fully throughout Guyana.

“The victims of rape and paedophilia in Guyana urgently need to have the backlog of sexual offences cases which fall under both the old and new sexual offence laws fast tracked,” the letter had said.

It had also suggested special courts should be set up to facilitate this if the need arises, while noting that the majority of survivors of sexual offences in Guyana are children, many of whom have been waiting for over five or even ten years to have their cases heard.

“Is this the justice they deserve?” the women and human right activists asked, adding that up to the time of the amendment to the SOA 2010, there was already a backlog of over one hundred cases.

They pointed out that the victims of rape and paedophilia in Guyana needed professional and proper investigations of sexual offences cases and the courts needed access to DNA evidence, which would do more to instil confidence in the justice system than the poor and questionable police investigations that often led to dismissals of matters.

“They need comprehensive services from special units set up in every hospital or, where no hospitals are available, other appropriate venues, where services are centralized and victim-centered, with nurses trained in the gathering of forensic evidence and treatment of rape and sexual assault survivors, trained counsellors to address the psychological and physical trauma, and trained police officers to take statements in a humane and professional manner. They also need court advocates to attend to their and their families’ needs throughout the court process,” the letter stated.

Further it was stated that the victims of rape and paedophilia needed to have ongoing education about the provisions of the Sexual Offences Act so that the population was informed about the law, including the wider definition of rape and consent, and the inclusion of new sexual offences, special orders for the safety of survivors, and compensation for survivors of sexual offences.

‘Stamp it Out’

Manickchand had led what was then called the ‘Stamp it Out’ Campaign which saw widespread consultation around the country, and Radzik said that it was very disappointing that after the consultation the bill spent two years at select committee and after it was made law it was found that something was wrong and it had to be returned to Parliament. She said this was so even though there were lawyers from all the political parties who would have seen the bill before it became law.

She also lamented the low conviction rate of sexual offences as was highlighted by Attorney-General Anil Nandalall during his recent budget presentation during which he said 22 cases were brought before the courts and there were no convictions.

“Once again we have a good act on paper but in terms of the implementation there is a problem. And if we [have] 22 cases [and] can’t get one conviction it says that something is wrong with the process of investigation which is the responsibility of the Guyana Police Force,” Radzik commented.

Following the 2010 passage of the act it had to be returned to the National Assembly to correct what was described as an oversight on the part of the persons who were involved in the passage of the landmark principal act.

The government in August of 2012 tabled the Sexual Offences (Amendment) Bill 2012 aimed at according to the accused the same rights as the prosecution with regard to submission of statements for paper committals. The bill when passed into law would also allow for statements written on behalf of a child to carry a mark made by that child if he or she was unable to sign his or her name.

Clause 4 of the bill sought to amend the Schedule of the Principal Act to give the accused the right to lead evidence or submit written statements and that it would be prejudicial to the accused if the accused did not have this right in the paper committal process. The bill said that there would be a level playing field as regards submission of evidence by the prosecutor and the accused.

The need for the new piece of legislation became apparent when acting Chief Justice Ian Chang made a ruling citing the unconstitutionality of the Sexual Offences Act in its extant form.

The Chief Justice had said in his ruling that several sections of the Sexual Offences Act were unconstitutional in as much as they did not accord to the accused person certain facilities which are guaranteed to an accused person in a criminal trial by the fundamental rights provision of the constitution.

Manickchand in her recent public statements on Facebook has admitted that in Guyana the journey on the issue is far from over, but that service providers on every level “have to bring their minds and attitudes and thinking up to date with the provisions of the Act.” She added that it was never going to be an easy task and that in her view perhaps the hardest part is getting the act implemented.

“Almost as hard though will be to actually get persons across the system… justice, including police and magistrates’ and high courts, social services, members of the citizenry, to know how to use and apply the act and generally what conduct is expected of us as a people,” the minister said.

She also mentioned that the act prescribes new offences never before known to the country such as rape of a spouse, a redefinition of rape, gender neutrality and allowing for boys and men to be complainants too. The procedures, she said, are new and the act “turns on its head the manner that statements are taken, investigations done and completed and PIs (Preliminary Inquiries) are dealt with.”

She said that intensive training will have to be done and there must be serious monitoring with a whole new thinking needed.

“This is why it is necessary and urgent to get the institutions prescribed under the act set up e.g. the task force and the sexual violence unit etc etc. these institutions will have to pay specific attention to changing attitudes and on training as aforementioned and on setting up supporting structures.”

For her part, Minister Webster in her March 2013 letter had said that the state had implemented a combination of legislative, judicial, policy and administrative measures along with programmatical interventions “to ensure a comprehensive and a more coherent approach to protecting our women and children from abuse, exploitation and violence. We remain committed to working with all stakeholders to ensure the National Plan of Action as stipulated in the Act is formulated.

“Thus far, all the obligations which devolve upon Guyana under various treaties in respect of women and children are being satisfactorily observed and it remains the highest priority of this Government to ensure that we continue to discharge these obligations,” the minister had stated.

She had said that since the act was passed in 2010, there was training for magistrates on two occasions. In addition, one member of the judiciary and one member of the magistracy also benefited from training on sexual offences in the United Kingdom.

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